KEEHN v. C/O LUCAS et al
Filing
61
ORDER granting 54 Motion in Limine. Signed by Magistrate Judge Maureen P. Kelly on 1/30/2012. (ndf)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
GERALD KEEHN,
Plaintiff,
)
)
)
vs.
)
)
C/O LUCAS; C/O CHIPIKITAS; C/O
)
ELSTNER; FORMER SUPERINTENDENT)
HARRY E. WILSON; CAPTAIN
)
McCOMBIE; LT. TKACS. SGT. HOGAN; )
C. SHAFFER, Control Sgt.; C/O
)
DELBRIDGE,
)
Defendants.
)
Civil Action No. 09-16
Magistrate Judge Maureen P. Kelly
OPINION AND ORDER
Plaintiff Gerald Keehn has filed a Motion in Limine to Preclude Defendants from
Introducing any Evidence or Testimony at Trial Related to an Asserted Consent Defense (the
“Motion in Limine”). [ECF No. 54]. The Motion in Limine relates to Plaintiff’s alleged
consent to an assault with an Electronic Body Immobilization Device (“EBID”). Defendants
have filed responses in opposition to the Motion in Limine, contending that the evidence at issue
is directly relevant to their defense to Plaintiff’s action. [ECF Nos. 56, 57]. For the reasons set
forth below, Plaintiff’s Motion in Limine is granted and the parties are directed that evidence of
alleged consent to the EBID assault is not admissible at trial.
I. BACKGROUND
Plaintiff filed suit alleging, inter alia, violations of his Eighth Amendment rights under 42
U.S.C. § 1983, for the excessive use of force in an incident that Defendants have admittedly
characterized as an “ill-considered experiment,” “innocent horseplay,” and “an ill-advised
misadventure.” [ECF No. 57, p.6; ECF No. 56, pp. 7, 10]. Plaintiff alleges that on August 20,
1
2007, he was incarcerated in Administrative Custody (“AC”) status in the L-Unit, C-Pod,
Restricted Housing Unit (“RHU”) at the State Correctional Institution in Fayette County,
Pennsylvania (“SCI-Fayette”). He was assigned to AC at his own request because a
confrontation with other inmates in the prison’s general population left him in fear for his wellbeing. At the time, Defendants Lucas, Chipikitis and Elstner were Pennsylvania Department of
Corrections (“DOC”) corrections officers assigned to Plaintiff’s housing unit.
About a month prior to the incident, Plaintiff became a block worker for J-Block,
performing work seven days per week under the supervision of corrections officers. [ECF No. 38
Ex. 5 at 11]. He spent most of each day out of his cell performing duties including cleaning,
packing essentials for other inmates, and handling request slips and grievances. [Id. at 10,
11, 12]. Plaintiff alleges that two days prior to the events at issue, he asked Defendant Elstner if
he could borrow a television, because the one in his cell was “on the fritz.” [Id. at 14]. Plaintiff
contends that in the evening of August 20, 2010, when he returned to his cell on L-Block after
finishing his work on J- Block, the following events transpired:
I came back in with the other block worker. Lucas stopped me by the sergeant’s
bubble and said, do you want to borrow a TV? I said yeah. He said wait here. He
goes into the control room. He’s in there maybe a minute, two minutes, comes
back out and says, follow me. We walked around his right side. He goes in the
armory and says, stay here. I stood there at the armory. He was gone maybe
another minute, two minutes. He comes back out. He says, follow me.
We went to D Pod where we met up with CO Elstner and the other block worker .
. . We went upstairs on D Pod. We went in the back room. CO Lucas asked
Elstner if he had the keys to the [property room] door. Elstner opened up the door
for us. We went in, and we was asking if he had the TV. We looked for the TV. It
wasn’t in that room. So Elstner and [the other block worker] left. They came back
in with the TV.
Elstner set the TV up on the desk. We’re trying to get it to work. . . . I asked CO
Elstner, are we done, and he said yeah. Then CO Lucas said, well, not yet. He said
either I was going to give them all a blow job or get tasered . . . And I looked at
him. I was like, tasered? And he pulled the taser out of his pocket. And I go, I’m
2
cool. I’m good. I go to walk out of the room, and CO Chipikitas was walking in as
I was about to leave. And he’s like, where are you going, convict? And he started
to laugh. I was like, I’m out of here. He pushed me back in the room. When he
pushed me back, CO Lucas grabbed the back of my jumpsuit that I had tied
around and pushed me over to the wall.
And from what I could see Chipikitas was on my left side; Lucas was on my right.
And Chipikitas had his arm on my left side holding me against the wall. Lucas
had his left hand on my shoulder, and I got tasered.
(Id. at 12-13). The transcript of Plaintiff’s deposition then reflects the following exchange:
Q. Do you know how many times?
A. Three
Q. On your right? Chipikitas was on yourA. Left.
Q. – left? And they were holding you against the wall?
A. Wall.
Q. As they were holding you that’s when you were struck with the EBID?
A. Well, Lucas let go of me when he tasered me, but Chipikitas still had a hold of
me on my left side. And he jumped back, and Lucas tasered me two more times.
Q. And then what happened?
A. After the third time I fell to the floor. I got up, and I lost control of my bowels
and I urinated on myself. They laughed. As I was walking toward the desk
because there’s [a] chair at the desk, I went to sit down, and Lucas hands me the
TV and said, keep your mouth shut, thanks for participating in our little
experiment.
Q. Then what happened?
A. Elstner left. Lucas left. Me - - not Elstner, but Chipikitas and Lucas left first.
There’s me, Elstner and [the other inmate] left. I picked the TV up, walked
outside on the catwalk and went to my cell. [Id. at 13].
3
The next day, Plaintiff completed a sick call slip stating that he had been tasered by guards, and
that the resulting welts appeared to be infected. [Id. at 14]. On August 22, a physician’s assistant
examined him through the door of his cell, stating that the welts did not seem to be infected and
were healing. [Id. at 15]. Plaintiff then wrote a letter to the then Superintendent of SCI-Fayette,
Harry E. Wilson, and filed a grievance. Two lieutenants visited Plaintiff three or four days after
the examination by the physician’s assistant, and a nurse photographed the marks on Plaintiff’s
right side. [Id. at 16].
According to Defendant Lucas, during the 2:00 p.m. - 10:00 p.m. shift on August 20,
2007, he took armory keys from the L-5 control booth, went to the armory, and removed an
EBID. [ECF No. 37 at ¶34]. On the pretense of securing a television for Plaintiff’s use, he then
went with Plaintiff and another inmate to the property room on the second level of D-Pod, a
room lacking a security camera, where he used the EBID against Plaintiff. [Id. at ¶ 36]. Lucas
states that he did this at Plaintiff’s request, so that Plaintiff could settle an argument with his
cellmate regarding the physical effect of an EBID. [ECF No. 38 Ex. 6 at 25-26]. Lucas testified
at his deposition that afterward, he gave Plaintiff a television so that “maybe he wouldn’t say
anything.” [Id. at 26]. Defendant Elstner contends that he was present when Lucas used the
EBID on Plaintiff, but believed that Plaintiff was a willing participant. [ECF No. 43 at ¶ 19].
Defendant Chipikitas testified at his deposition that he did not enter the room until the incident
was over. [Id. at ¶ 14].
Defendant Lucas ultimately was terminated from his position, and faced criminal
charges.1 While the ultimate disposition of his charges is contested by the parties, Lucas
consented to participation in an Accelerated Rehabilitation Program to resolve the charges
1
Defendant Lucas was returned to work as the result of a grievance filed by his union.
4
against him. [ECF No. 17, ECF No. 55-1, ECF No. 57 p. 16]. Defendant Elstner received a
single day suspension for failing to report the incident. Defendant Chipikitis was not disciplined.
II. DISCUSSION
A. Legal Standard
The purpose of a motion in limine is to avoid injecting into trial matters which are
irrelevant, inadmissible, and prejudicial. Emcore Corp. v. Optium Corp., Civ. No. 07–326, 2009
U.S. Dist. LEXIS 96305, *2-3 (W.D.Pa. Oct. 16, 2009) (quoting Black's Law Dictionary 1013
(6th ed.1990)). Otherwise stated, motions in limine narrow the evidentiary issues for trial and
eliminate unnecessary trial interruptions. Id. at *3 (quoting Bradley v. Pittsburgh Bd. of Educ.,
913 F.2d 1064, 1069 (3d Cir.1990)).
Under Rule 401 of the Federal Rules of Evidence, “[e]vidence is relevant if: (a) it has any
tendency to make a fact more or less probable than it would be without the evidence; and (b) the
fact is of consequence in determining the action.” Fed.R.Evid. 401. Rule 402 provides that
“[r]elevant evidence is admissible unless any of the following provides otherwise: the United
States Constitution; a federal statute; these rules; or other rules prescribed by the Supreme Court.
Irrelevant evidence is not admissible.” Fed.R.Evid. 402. Plaintiff contends that because consent
is not an available defense to either his Eighth Amendment or his common law assault and
battery claims, evidence tending to establish consent is not of consequence and therefore
irrelevant and inadmissible.
B. Consent is Irrelevant to Plaintiff’s Eighth Amendment Claim.
Plaintiff seeks to exclude evidence of his alleged consent to the use of the EBID on the
basis that it is irrelevant to his Eighth Amendment claim. Defendants do not proffer any security
5
interest to be served by the activation of the EBID and, in their characterization of the incident,
concede that the use of force against Plaintiff was a “misadventure” or “horseplay.” Plaintiff
contends that in the absence of a legitimate penological interest for using the EBID, Defendants’
conduct was wanton and malicious, and a per se violation of the “cruel and unusual punishment”
clause of the Eighth Amendment. Plaintiff further argues that as a matter of constitutional law
and public policy, consent is not an available defense to wanton and malicious conduct, making
purported consent irrelevant to his Eighth Amendment claim.
Defendants counter that consent is relevant to the subjective good faith of the corrections
officers not to cause harm and to aid in the determination of the ultimate issue, to wit, whether
the EBID was used “maliciously and sadistically to cause harm.” [ECF No. 56 p. 10]. Defendant
Lucas contends that consent is relevant to a determination of whether the use of force was mere
“horseplay” and therefore not “incompatible with contemporary standards of decency.” [ECF
No. 57, p. 4]. Defendant Lucas also posits that Plaintiff’s alleged consent is relevant to a
determination of whether Defendants acted “with the requisite deliberate indifference or reckless
disregard” to support an Eighth Amendment claim. Id.
1. Standard to Measure the Use of Force
The language of the Eighth Amendment, “[e]xcessive bail shall not be required,
nor excessive fines imposed, nor cruel and unusual punishments inflicted,”
manifests “an intention to limit the power of those entrusted with the criminal-law
function of government.” Ingraham v. Wright, 430 U.S. 651, 664, 97 S. Ct. 1401,
1408, 51 L. Ed.2d 711 (1977). The Cruel and Unusual Punishments Clause “was
designed to protect those convicted of crimes,” ibid., and consequently the Clause
applies “only after the State has complied with the constitutional guarantees
traditionally associated with criminal prosecutions.” Id., at 671
Whitely v. Albers, 475 U.S. 312, 318-9 (1986). In Rhodes v. Chapman, 452 U.S. 337, 345-346
(1981), the United States Supreme Court held that with regard to the treatment of prisoners in the
6
custody of the state, the Eighth Amendment prohibits the “unnecessary and wanton infliction of
pain” which serves “no legitimate penological interest.”
The Eighth Amendment, in only three words, imposes the constitutional limitation
upon punishments: they cannot be “cruel and unusual.” The Court has interpreted
these words “in a flexible and dynamic manner,” Gregg v. Georgia, 428 U.S. 153,
171, 96 S. Ct. 2909, 2924, 49 L.Ed.2d 859 (1976) (joint opinion), and has
extended the Amendment's reach beyond the barbarous physical punishments at
issue in the Court's earliest cases. See Wilkerson v. Utah, 99 U.S. 130, 25 L. Ed.
345 (1879); In re Kemmler, 136 U.S. 436, 10 S. Ct. 930, 34 L. Ed. 519 (1890).
Today the Eighth Amendment prohibits punishments which, although not
physically barbarous, “involve the unnecessary and wanton infliction of pain,”
Gregg v. Georgia, supra, at 173, 96 S. Ct., at 2925, or are grossly disproportionate
to the severity of the crime, Coker v. Georgia, 433 U.S. 584, 592, 97 S. Ct. 2861,
2866, 53 L. Ed.2d 982 (1977) (plurality opinion); Weems v. United States, 217
U.S. 349, 30 S. Ct. 544, 54 L. Ed. 793 (1910). Among “unnecessary and wanton”
inflictions of pain are those that are “totally without penological justification.”
Gregg v. Georgia, supra, 428 U.S. at 183, 96 S. Ct. at 2929; Estelle v. Gamble,
429 U.S. 97, 103, 97 S. Ct. 285, 290, 50 L. Ed.2d 251 (1976).
Rhodes v. Chapman, 452 U.S. 337, 345-346 (1981). Certainly, courts extend wide ranging
deference to the judgment and policies of prison officials who must maintain internal order and
discipline in the prisons and who must often make snap decisions in volatile and dangerous
situations. Hudson v. McMillian, 503 U.S. 1, 6 (1992).
Officials balance the threats presented
by prison unrest to prison workers, inmates and administrators “against the harm inmates may
suffer if guards use force.” Id. Because of the competing concerns often facing prison
authorities, the standard to measure the propriety of the use of force in all cases alleging an
excessive use of force is “whether force was applied in a good faith effort to maintain or restore
discipline or maliciously and sadistically for the very purpose of causing harm.” Whitley v.
Albers, 475 U.S. 312, 320 (1986).
Where “an effort to maintain or restore discipline” is the proffered reason for the use of
force, then and only then is an examination of the “good faith” of the official and the
reasonableness undertaken:
7
The test for whether a claim of excessive force is constitutionally actionable is
“whether force was applied in a good faith effort to maintain or restore discipline
or maliciously and sadistically for the very purpose of causing harm.” Whitley v.
Albers, 475 U.S. 312, 319, 106 S. Ct. 1078, 89 L.Ed.2d 251 (1986). The relevant
factors for a court to consider are (1) the need for the application of force; (2) the
relationship between the need and the amount of force that was used; (3) the
extent of injury inflicted; (4) the extent of the threat to the safety of staff and
inmates, as reasonably perceived by responsible officials on the basis of the facts
known to them; and (5) any efforts made to temper the severity of a forceful
response. Id. see also Brooks [v. Kyler, 204 F.3d 102, 109 (3d Cir. 2000)].
Giles v. Kearney, 571 F.3d 318, 326 (3d Cir. 2009). However, in the absence of any legitimate
need for force, the use of force is per se a violation of the Eighth Amendment.
In Hope v. Pelzer, the United States Supreme Court held that where a prisoner does not
present a current risk or threat of harm, yet is handcuffed to a hitching post in the full sun for
seven hours and left to soil himself as punishment for an earlier altercation, the state has
committed an “obvious” Eighth Amendment violation because the pain inflicted serves no
legitimate penological interest. Hope v. Pelzer, 536 U.S. 730, 737-8 (2002).2 Similarly, where a
guard discharges pepper spray into a tier of cells “as a practical joke,” the application of force is
not warranted at all, and constitutes a violation of the Eighth Amendment:
Where no legitimate penological purpose can be inferred from a prison
employee’s alleged conduct …, the conduct itself constitutes sufficient evidence
that force was used ‘maliciously and sadistically for the very purpose of causing
harm.’” Giron v. Corrections Corp. of Am., 191 F.3d 1281, 1290 (1oth Cir. 1999)
(quoting Whitley, 475 U.S. at 320-21, 106 S. Ct. 1078). We will not require
inmates to be subjected to the malicious whims of prison guards. See Hudson v.
McMillan, 503 U.S. 1, 9, 112 S. Ct. 995, 117 L. Ed.2d 156 (1992) (“When prison
officials maliciously and sadistically use force to cause harm, contemporary
standards of decency always are violated. This is true whether or not significant
injury is evident.”).
DeSpain v. Uphoff, 264 F.3d 965, 978 (10th Cir. 2011).
2
Hope v. Pelzer, supra, concerned allegations of cruel and unusual “conditions of confinement,” in contrast to the
cruel and unusual “excessive use of force” alleged here. However, with regard to all Eighth Amendment claims, the
United States Supreme Court has made clear that the gratuitous infliction of “wanton and unnecessary” pain is
“clearly” prohibited. Id., 536 U.S. at 738.
8
Here, Defendants’ characterization of the event as “an ill-considered experiment,” “an illadvised misadventure,” and “innocent horseplay” suffices to make clear that no legitimate
penological interest was served by the use of the EBID device. 3 Defendants’ unequivocal
concessions make clear that as to the “ultimate issue,” no risk of harm was present when the
EBID was used to shock Plaintiff in a storage closet, hidden from the view of any camera.
It cannot reasonably be disputed that the use of an EBID constitutes a “use of force.” “As
the Supreme Court has said, pain, not injury, is the barometer by which we measure claims of
excessive force … and one need not have personally endured a taser jolt to know the pain that
must accompany it. ‘[A] stun gun inflicts a painful and frightening blow [that] temporarily
paralyzes the large muscles of the body, rendering the victim helpless.’” Lewis v. Downey, 581
F.3d 467, 475 (7th Cir. 2009) (citations omitted). Defendants’ use of the EBID, whether once or
three times, resulted in burn marks and the loss of control of bodily functions, leaving Plaintiff to
suffer the additional humiliation of soiling himself.
3
Defendants’ failure to proffer any security interest and unequivocal concession that the use of force was
“horseplay” and/or an “ill-advised misadventure” makes clear that no legitimate penological interest was served
when the EBID was activated and Plaintiff sustained his injuries. These concessions are binding as judicial
admissions, rendering the “ultimate issue” of the absence of a legitimate penological interest in the use of the EBID
resolved.
Judicial admissions are concessions in pleadings or briefs that bind the party who makes them. See
Parilla v. IAP Worldwide Serv., VI, Inc., 368 F.3d 269, 275 (3d Cir. 2004) (finding that the
plaintiff was bound because she “expressly conceded those facts in her complaint.”) (citing, inter
alia, Soo Line R.R. Co. v. St. Louis Southwestern Ry. Co., 125 F.3d 481, 483 (7th Cir. 1997)
(noting the “well-settled rule that a party is bound by what it states in its pleadings”); Glick v.
White Motor Co., 458 F.2d 1287, 1291 (3d Cir. 1972) (noting that unequivocal “judicial
admissions are binding for the purpose of the case in which the admissions are made[,] including
appeals”)). See also Karkoukli's, Inc. v. Dohany, 409 F.3d 279, 283 (6th Cir. 2005) (finding that
the plaintiff's “admissions of statutory compliance by defendants in its briefs” constituted
“‘judicial admissions' that estop [plaintiff] from raising a statutory non-compliance argument in
this appeal.”) (citation omitted); Gospel Missions of America v. City of Los Angeles, 328 F.3d
548, 557 (9th Cir. 2003) (stating that court of appeals has discretion whether to treat a concession
in a pleading or brief as a binding judicial admission).
Berckeley Inv. Group, Ltd. v. Colkitt, 455 F.3d 195, 211 (3d Cir. 2006).
9
Defendants have failed to support the notion that “consent” to his injuries serves a
legitimate penological interest. This completes the inquiry, rendering evidence of consent
irrelevant to the “ultimate issue.” As in DeSpain, supra, in the admitted absence of any
legitimate penological interest, Defendants’ use of the EBID constitutes sufficient evidence, as a
matter of law, that the force used was excessive, malicious and sadistic, on a whim for the very
purpose of causing harm and, therefore, unconstitutional.
2. Evidence of Plaintiff’s Consent is Not Relevant to Any Asserted Defense.
Defendants posit that evidence of Plaintiff’s consent is relevant to a determination of (1)
whether Defendants subjectively intended to cause harm, (2) the application of “good faith
immunity” and, (3) as with certain other rights arising under the constitution, as a defense to the
violation itself. These arguments are readily disposed of.
a. Subjective Intent
As set forth supra, in the admitted absence of any stated public safety purpose for the use
of the EBID, Defendants’ conduct constitutes a per se violation of the Eighth Amendment and
violates contemporary standards of decency. See Brooks v. Kyler, 204 F.3d 102 (3d Cir. 2000).
Simply stated, examination of subjective intent is limited to whether the use of force is in
furtherance of an emergent and legitimate penological interest. Whitley, supra. Where it is
conceded that no legitimate penological interest exists, inquiry into whether Defendants
subjectively intended to cause harm is not probative and, indeed, unnecessary. In such
instances, “we may infer the existence of this subjective state of mind from the fact that the risk
of harm is obvious.” Hope v. Pelzer, 536 U.S. at 738.
Defendants cite Pabon v. State Correctional Officer Lemaster, No. 07-805, 2007 WL
1830500 (W.D. Pa. 2008), for the proposition that an excessive use of force claim requires an
10
examination of the Defendants’ subjective intent to cause harm, rendering evidence of Plaintiff’s
consent relevant. However, in Pabon, the defendant correctional officer had not conceded the
absence of any legitimate penological interest with regard to the use of force and so the
defendant’s subjective state of mind was relevant. Here, Defendant Lucas has testified that he
was helping Plaintiff “settle an argument” as to the physical effects of an EBID. [ECF No. 38,
Ex. 6 at 25-26]. It is clear that no “legitimate penological interest” was served and, as such,
inquiry into his state of mind is irrelevant. Defendants’ subjective intent to cause harm wantonly
and maliciously may be inferred as a matter of law. Hope v. Pelzer, 536 U.S. at 738.
b. Good Faith Immunity
Defendants contend that evidence of consent is relevant to the application of “good faith
immunity” as a complete defense to Plaintiff’s suit. Generally, “government officials are
immune from suit in their individual capacities unless, ‘taken in the light most favorable to the
party asserting the injury, … the facts alleged show the officer’s conduct violated a constitutional
right’ and ‘the right was clearly established at the time of the objectionable conduct.’ … For a
right to be clearly established, ‘[t]he contours of the rights must be sufficiently clear that a
reasonable official would understand that what he is doing violates that right.’” Giles v.
Kearney, 571 F.3d 318, 324 (3d Cir. 2009).
In Giles, the United States Court of Appeals for the Third Circuit reversed the grant of
summary judgment to prison officials on the issue of immunity. The Court of Appeals held as a
matter of law that by the year 2001, “it was established that an officer may not kick or otherwise
use gratuitous force against an inmate who has been subdued.” Id. at 326-27 (emphasis added).
The Court of Appeals further held that the gratuitous use of force absent a threat of harm is a
11
situation “that a reasonable officer would have known was a violation [of the Eighth
Amendment] under the circumstances.” Id.
Here, there is no dispute that at the time the EBID was activated, Plaintiff did not present
a risk or threat of harm necessitating the use of force. Defendants’ subjective belief as to the
propriety of their conduct is therefore irrelevant because, as a matter of law, a reasonable officer
should have known (as of 2001) that the gratuitous use of force on a “subdued, nonresisting
inmate” was a violation of the Eighth Amendment. Id. at 327.4 Qualified immunity under these
circumstances is not available as a defense, and evidence of Plaintiff’s purported consent is
irrelevant.
4
Additionally, Defendants can be charged with knowledge of the express policies of the
Department of Corrections, which clearly delineate when the use of force is appropriate:
It is the policy of the Department that:
A. Use of force against an inmate is authorized when the acting staff member
reasonably believes such force is necessary to accomplish any of the
following objectives:
1. protection of self or others;
2. protection of property from damage or destruction;
3. prevention of an escape;
4. recapture of an escapee;
5. prevention of an act of crime;
6. effect compliance with the rules and regulations when other methods
of control are ineffective or insufficient; and/or
7. protection of the inmate from self-inflicted harm.
B. When force is used, the least amount of force the staff member reasonably
believes is necessary to achieve the authorized purpose is to be used and the
use of force will stop once control is achieved.
DC-ADM 201.
12
c. Waiver
Defendant Lucas contends that the Eighth Amendment right against cruel and unusual
punishment can be waived by consent. For this proposition, Defendant Lucas cites inapposite
case law dealing with consensual sexual relationships between guards and inmates. Defendant
Lucas misstates that Stubbs v. DeRose, No. 03-2362, 2007 WL 776789 (M.D. Pa. 2007), an
unreported decision of the United States District Court for the Middle District of Pennsylvania, is
the law of the “Third Circuit,” and contends “the legal defense of consent as it applies to claims
of excessive force under the Eighth Amendment has already been recognized in the Third
Circuit.” [ECF No. 57, p. 6].
Stubbs involved a five year affair between a prison chaplain and an inmate, where there
was “no evidence of record that [Defendant’s] conduct caused Plaintiff any pain or other injury.”
As an initial matter, Stubbs is not an “excessive force” case, but a “conditions of confinement”
case. The allegations at issue did not involve the use of force, but the impropriety of a long-term
sexual relationship between a prison chaplain and an inmate that continued after the inmate had
been released from prison. As recognized by the District Court, “an inmate who brings an action
under 42 U.S.C. § 1983, alleging sexual assault or related claims, is generally alleging a violation
of the conditions of confinement under the Eighth Amendment. Farmer v. Brennan, 511 U.S.
825, 847 (1994).” Id. Accordingly, a different standard applies to determine whether the
conduct at issue constitutes a violation of the Eighth Amendment:
[w]hat is necessary to establish an “unnecessary and wanton infliction of pain,”
we said, varies according to the nature of the alleged constitutional violation. 475
U.S. at 320, 106 S. Ct. at 1085. For example, the appropriate inquiry when an
inmate alleges that prison officials failed to attend to serious medical needs is
whether the officials exhibited “deliberate indifference.” See Estelle v. Gamble,
429 U.S. 97, 104, 97 S. Ct. 285, 291, 50 L. Ed.2d 251 (1976). This standard is
appropriate because the State's responsibility to provide inmates with medical
13
care ordinarily does not conflict with competing administrative concerns.
Whitley, supra, 475 U.S. at 320, 106 S. Ct. at 1084-1085.
By contrast, officials confronted with a prison disturbance must balance the threat
unrest poses to inmates, prison workers, administrators, and visitors against the
harm inmates may suffer if guards use force. Despite the weight of these
competing concerns, corrections officials must make their decisions “in haste,
under pressure, and frequently without the luxury of a second chance.” 475 U.S.
at 320, 106 S. Ct. at 1084. We accordingly concluded in Whitley that application
of the deliberate indifference standard is inappropriate when authorities use force
to put down a prison disturbance. Instead, “the question whether the measure
taken inflicted unnecessary and wanton pain and suffering ultimately turns on
‘whether force was applied in a good faith effort to maintain or restore discipline
or maliciously and sadistically for the very purpose of causing harm.’ ” Id., at
320-321, 106 S. Ct., at 1085 (quoting Johnson v. Glick, 481 F.2d 1028, 1033
(CA2), cert. denied sub nom. John v. Johnson, 414 U.S. 1033, 94 S. Ct. 462, 38
L. Ed.2d 324 (1973)).
Hudson v. McMillian, 503 U.S. 1, 5-6 (1992). The “unnecessary and wanton infliction of pain”
standard has been extended to all excessive force claims, and the inquiry is initially limited to the
existence of a legitimate penological interest. See, Hudson v. McMillan, 503 U.S. at 7 (“we
hold that whenever prison officials stand accused of using excessive force in violation of the
Cruel and Unusual Punishments Clause, the core judicial inquiry is that set out in Whitley:
whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously
and sadistically to cause harm”). Accordingly, there is no inquiry into whether Defendants were
deliberately indifferent, or whether Defendants intended to cause pain, or whether Defendants
considered Plaintiff’s purported consent to physical pain a reasonable request. If the claim is
excessive use of force, the only relevant inquiry is whether there is a legitimate penological
interest to be served. Where it is conceded no legitimate penological interest exists, the inquiry
is at an end.
As to whether a prisoner in the custody of the state can consent to the intentional
infliction of pain, the United States Supreme Court has unequivocally held that gratuitous
14
violence, serving no legitimate penological interest, is a violation of “the basic concept
underlying the Eighth Amendment[, which] is nothing less than the dignity of man.” Hope v.
Pelzer, 536 U.S. at 738. Moreover, it is clear that prison officials have a duty to protect prisoners
from violence, especially in those situations where it is known that harm will result.
When the State takes a person into its custody and holds him there against his
will, the Constitution imposes upon it a corresponding duty to assume some
responsibility for his safety and general well-being. See Youngberg v. Romeo,
supra, 457 U.S., at 317 ("When a person is institutionalized--and wholly
dependent on the State[,] ... a duty to provide certain services and care does
exist"). The rationale for this principle is simple enough: when the State by the
affirmative exercise of its power so restrains an individual's liberty that it renders
him unable to care for himself, and at the same time fails to provide for his basic
human needs--e.g., food, clothing, shelter, medical care, and reasonable safety--it
transgresses the substantive limits on state action set by the Eighth Amendment
and the Due Process Clause. See Estelle v. Gamble, supra, 429 U.S., at 103-104;
Youngberg v. Romeo, supra, 457 U.S., at 315-316. The affirmative duty to protect
arises not from the State's knowledge of the individual's predicament or from its
expressions of intent to help him, but from the limitation which it has imposed on
his freedom to act on his own behalf. See Estelle v. Gamble, supra, 429 U.S., at
103 ("An inmate must rely on prison authorities to treat his medical needs; if the
authorities fail to do so, those needs will not be met").
DeShaney v. Winnebago County Dept. of Social Services, 489 U.S. 189, 199-200 (1989)
(footnote deleted). The notion that an inmate in the custody of the state can consent or waive
the right to be safe from certain gratuitous physical harm is inimical to Defendants’ duty to
protect him. In conjunction with an absolute prohibition against the use of force in the absence
of a legitimate penological interest, consent to harm, simply, is untenable in contemporary
society.
C. Consent is irrelevant to Plaintiff’s common law claim for assault and battery.
Plaintiff contends that consent is unavailable as a defense to his common law assault and
battery claim. The Court agrees. Pennsylvania law recognizes the custodial relationship
between guard and prisoner, and imposes a duty of protection owed by a guard to a prisoner in
15
his care. In this context, the Legislature has delineated when a correctional officer’s use of force
is justified:
§ 509. Use of force by persons with special responsibility for care, discipline or
safety of others.
The use of force upon or toward the person of another is justifiable if:
* *
*
(5) The actor is a warden or other authorized official of a correctional institution; and:
i.
ii.
iii.
he believes that the force used is necessary for the purpose of enforcing the
lawful rules or procedures of the institution, unless his belief in the lawfulness
of the rule or procedure sought to be enforced is erroneous and his error is due
to ignorance or mistake as to the provisions of this title, any other provision of
the criminal law or the law governing the administration of the institution;
the nature or degree of force used is not forbidden by law; and
if deadly force is used, its use is otherwise justifiable under this chapter.
18 Pa. C.S.A. § 509(5). With these limitations, the Pennsylvania Legislature has clearly stated
the policy of the Commonwealth such that when a guard, who is charged with “special
responsibility for [the] care, discipline or safety of others,” uses force, the force must be used in
the furtherance of enforcing the lawful rules or procedures of the institution. Defendant’s “illadvised misadventure” does not meet this threshold and, notably, consent is not a permitted
justification to use force, especially an EBID.
In promulgating the “use of force” provisions, the Pennsylvania Legislature has identified
prisoners as individuals to whom a “special responsibility” is owed. This recognition of the
dependency of inmates on guards is further evidenced by the Legislature’s enactment of the
Institutional Sexual Assault Statute, 18 Pa. C.S.A. § 3124.2, which renders it a felony for a guard
to have sexual relations with an inmate. In Commonwealth v. Mayfield, 832 A.2d 418 (Pa.
2003), a corrections officer convicted under Section 3124.2 for her “consensual” sexual relations
16
with three inmates challenged the statute on Fourteenth Amendment “freedom of association”
grounds. The Pennsylvania Supreme Court upheld the statute, citing the state interest in
protecting inmates from an inherently coercive relationship:
Sexual contact between correctional staff and inmates is obviously rife with the
possibility of coercion, both subtle and overt, given the extensive power guards
exercise over inmates. Furthermore, public correctional institutions can in no way
be likened to that “most private of places, the home.” Lawrence, at *16. While the
state interest in regulating private consensual sex between adults is low, see
Commonwealth v. Bonadio, 490 Pa. 91, 415 A.2d 47, 50 (1980) (finding no state
interest sufficient to justify prohibition of voluntary deviate sexual intercourse), in
the setting of a correctional institution the calculus of interests is fundamentally
different.
In such a setting, the state interest in maintaining institutional order and discipline
is high, and the interest of the individual is necessarily limited. The United States
Supreme Court noted this essential difference in Pell v. Procunier, 417 U.S. 817,
94 S.Ct. 2800, 41 L.Ed.2d 495 (1974):
We have recognized, however, that the relationship of state prisoners and
the state officers who supervise their confinement is far more intimate
than that of a State and a private citizen, and that the internal problems of
state prisons involve issues ... peculiarly within state authority and
expertise.
Id., at 825-26, 94 S. Ct. 2800 (quotation marks omitted). The Commonwealth has
an undeniable interest in ensuring the “relationship of state prisoners and the state
officers who supervise their confinement,” id., as well as institutional order and
discipline, is not undermined by sexual contact, consensual or otherwise.
Therefore, we conclude § 3124.2 does not “punish [ ] a substantial amount of
constitutionally-protected conduct.” Hendrickson, at 317-18. Rather, the statute
regulates “conduct [that] falls within the scope of otherwise valid criminal laws
that reflect legitimate state interests.” Id., at 318. Section 3124.2 is not
unconstitutionally overbroad.
Com. v Mayfield, at 472-473. Given the inherent dependency an inmate has on his caretakers,
and the “extensive power guards exercise over inmates,” Pennsylvania has recognized that
mutuality of consent within the confines of incarceration is not possible. This is especially so
where, as here, the Plaintiff is in Administrative Custody. Because of this placement, without
17
the discretionary consent of the prison staff to work, Plaintiff would be confined to his cell for
twenty-three hours per day.
The relevance of the Commonwealth’s recognition of a prisoner’s dependency on the
officials charged with his care is made apparent by the Pennsylvania Supreme Court’s decision
in C.C.H. v. Philadelphia Phillies, Inc., 940 A.2d 336 (Pa. 2008). There, the Pennsylvania
Supreme Court held that a civil defendant could not defeat a battery claim brought by a child
under the age of 13 by contending that the child had consented to sexual activity. In so holding,
the Pennsylvania Supreme Court relied on the fact that the criminal law had categorically
classified children under the age of 13 as being “incompetent as a matter of law to consent to
sexual contact.” C.C.H., 940 A.2d at 349. The Supreme Court held that it was appropriate to
define the applicable standard of conduct in civil tort matters by reference to criminal statutes:
Upon consideration of the foregoing arguments and relevant case law, we
conclude that, where the victim is a minor less than 13 years of age, evidence of
the victim's consent to sexual contact, like in criminal proceedings, is not an
available defense in determining civil liability for such contact.
In reaching this conclusion, we note by way of background our decision in
Congini v. Portersville Valve Co., 504 Pa. 157, 470 A.2d 515, 518 (1983), where
we first articulated the duty of care owed by a social host to a minor guest where
the minor is injured after imbibing alcoholic beverages provided by the host. See
also Alumni Association, 572 A.2d at 1212. In Congini, we noted that
Pennsylvania had previously adopted Restatement (Second) of Torts § 286
(1965), which provides that courts can define the standard of a “reasonable man”
by adopting standards of conduct from legislative enactments designed to protect
a class of individuals. Congini, 470 A.2d at 517-18. Taking guidance from the
Restatement, we then looked to Section 6308 of the Crimes Code, 18 Pa.C.S. §
6308, which prohibits persons under 21 years of age from purchasing or
consuming alcoholic beverages. Congini, 470 A.2d at 517-18. This Court
interpreted this statute as reflecting a legislative determination that persons under
21 are incompetent to handle alcohol. Id. More importantly, we also determined
that this provision reflected a legislative intent to protect minors as a class from
the deleterious effects of consuming alcoholic beverages. In light of this
legislative pronouncement, we adopted this standard as defining the duty of care
owed by adults to minor guests, and held that adults who furnish alcohol to
minors are negligent per se. Id. at 518. In so doing, this Court implicitly
18
recognized that the standards set forth under the Crimes Code may sometimes
have relevance in determining civil liability.
Id. at 347.
Here, taking the standards of conduct from legislative enactments designed to protect
inmates from unauthorized physical contact in an inherently coercive setting and adopting them
in the civil tort arena, it is clear that consent to assault and battery is not a defense to Plaintiff’s
common law tort claim. Indeed, if an inmate is incapable of consent to all sexual contact,
pleasurable as well as not pleasurable, it is inherently contradictory to hold that an inmate is
capable to consent to harmful and painful contact by an EBID that serves no legitimate
penological interest. Accordingly, because under the circumstances presented here, consent is
not a defense to Plaintiff’s common law tort claim, evidence of Plaintiff’s consent is not relevant
to any issue.
D. Undue Prejudice and Jury Confusion.
Alternatively, Plaintiff contends that evidence of consent may mislead or confuse the jury
as to the law to be applied to his Eighth Amendment claim and is unduly prejudicial. Pursuant
to the balancing test of Rule 403, a court “may exclude relevant evidence if its probative value is
substantially outweighed by a danger of one or more of the following: unfair prejudice,
confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting
cumulative evidence.” Fed.R.Evid. 403. Here, because Defendants have conceded that no
19
legitimate penological interest was served when the EBID was activated, consent is irrelevant to
any issue of consequence, and the issue of undue prejudice need not be reached.
ORDER
AND NOW, to wit, this 30th day of January 2012, it is hereby ORDERED that as it
pertains to Plaintiff’s purported consent to the use of force, Plaintiff’s Motion in Limine is
GRANTED and evidence of such consent is precluded from trial.
BY THE COURT,
/s/
Maureen P. Kelly
MAUREEN P. KELLY
UNITED STATES MAGISTRATE JUDGE
cc: All Counsel or Record via CM/ECF
20
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?